Sachs v. American Central Ins. Co.
| Citation | 227 N.Y.S.2d 873,33 Misc.2d 816 |
| Parties | Charles SACHS, Marvin Sachs, David Sachs and Peter Pluck, Plaintiffs, v. AMERICAN CENTRAL INSURANCE COMPANY, Commercial Union Assurance Co., Ltd., American Equitable Assurance Company, and Marcato Elevator Company, Inc., Defendants. |
| Decision Date | 04 May 1962 |
| Court | New York Supreme Court |
Raphael H. Weissman, Brooklyn, for plaintiffs.
Max J. Gwertzman, New York City, for defendants insurance companies.
O'Hara & Gronell, New York City, for defendant Marcato, by William J. O'Hara, New York City.
On the 18th day of June 1960 damage allegedly in the sum of $10,908.00 was occasioned to elevator equipment located in the elevator control room of an apartment building owned by plaintiff. It is for the recovery of those damages that this suit, consisting of two causes of action, is brought.
The complaint alleges for a first cause of action that defendants American Central Insurance Company, American Equitable Assurance Company of New York and Commercial Union Assurance Company, Limited, issued policies insuring plaintiffs 'against all direct loss by fire' to the premises; that plaintiffs thereafter sustained such loss but that the insurance companies disclaimed liability by reason of which plaintiffs repaired the damage at their own expense. By way of relief plaintiffs demand judgment against defendants insurance companies for the cost of the repairs.
The insurance companies in their joint answer interpose as an affirmative defense that the damage was due entirely to an electrical disturbance and was not in any way caused by fire. Consequently they disclaim liability relying upon a clause contained in each policy under 'EXCLUSIONS' from coverage which reads as follows:
'Electrical Apparatus Clause: This Company shall not be liable for any loss resulting from any electrical injury or disturbance to electrical appliances, devices or wiring from artificial causes unless fire ensues and, if fire does ensue, this Company shall be liable only for its proportion of loss caused by such ensuing fire.'
The second cause of action seeks recovery for the same damage against defendant Marcato Elevator Company, Inc. (hereinafter referred to as Marcato). It is alleged that Marcato undertook, when conditions warranted or upon notification of violations from the Department of Buildings, to repair and replace elevator equipment; and that it breached the elevator maintenance contract by refusing to repair and replace equipment damaged by fire, except for a motor which said defendant has repaired. Marcato asserts among other defenses that it was not required to make repairs by reason of paragraph '4' of the contract which provides that it 'shall not be under any obligation hereunder to make any renewals or repairs except those incidental to the normal operation of the machinery, and [it] is not required under this contract to make renewals or repairs necessitated by reason of negligence, accident, fire, water or misuse of machinery, apparatus or car or due to any other similar or dissimilar causes beyond its control.'
The other defendants named in the complaint are mortgagees of the premises. However, they have not appeared and no relief is requested as against them.
By stipulation between counsel for the parties, the jury was discharged and the case was tried by the court.
The court finds as a fact that there was a fire in the elevator motor room of the premises which caused damage to equipment located therein. Plaintiffs' handyman, Carter, was the only witness to the incident. His testimony relating thereto establishes that on June 18, 1960, while he was working on the ground floor, he heard the elevator alarm ring. Upon responding to the alarm he discovered that the elevator was stuck on an upper floor and he observed smoke in the ceiling of the elevator shaft. After helping the passengers out of the elevator car, he ran to the motor room located on the roof where he saw flames around the elevator apparatus. He then ran downstairs with the intention of calling the Fire Department. However, on the eighth floor he noticed a blanket in the incinerator booth. He took the blanket and returned to the motor room. The flames were not as large as they had been when he first saw them. He was able to extinguish the flames by beating them with a blanket. The wires and insulators were burnt and also emitted an odor which accompanies burning. Immediately thereafter he notified Marcato of the incident. This testimony is credited by the court.
The court further finds that there is no credible evidence as to whether the fire preceded or followed a short circuit of the elevator equipment wiring. Plaintiffs, to support their contention that the fire occurred first, rely upon a statement in a letter dated June 27, 1960 which they received from Marcato, reading as follows:
(Emphasis supplied.) (Plaintiffs' Ex. 6.)
The court finds the aforesaid statement to be without probative force as an admission. In the first place, it clearly appears to have been no more than an expression of opinion as to the apparent cause of the fire. In Aschenbach v. Keene, 46 Misc. 600, 601, 92 N.Y.S. 764, 765, the Appellate Term held that a statement that certain persons 'must have left the faucet open' was merely an expression of opinion and of no probative force. Secondly, as appears from a subsequent letter dated September 19, 1960 from Marcato to plaintiffs (Plaintiffs' Ex. 8), the earlier letter had been sent by Marcato at plaintiffs' request for the express purpose of enabling plaintiffs to present a claim for fire loss to the insurance companies in this case.
The expert witnesses failed to resolve this issue. Plaintiffs' expert testified that 'it was more than likely' that the fire came from outside the wiring. However, he examined the premises approximately two months after the incident occurred and did not inspect the drive motor which had been removed for repairs. Moreover, his testimony was predicated in large part upon the unproven hypothesis as to the origin of the fire contained in Marcato's first letter to plaintiffs, which was not supported by any evidence at the trial. To have probative force, opinion evidence must rest on a sound hypothesis having support in the evidence (Matter of Nazzaro v. Angelilli, 217 App.Div . 415, 417, 216 N.Y.S. 721, 723). Expert testimony may not be predicated on a sequence of conjectures (Sparkill Realty Corporation v. State, 268 N.Y. 192, 197 N.E. 192). The insurance companies' expert claimed that he found no evidence that there had been any fire but he conceded that a short circuit in the wiring could be caused by external flames if the insulation were sufficiently burned away or dried out by a fire.
The position of the plaintiffs is that they have established that the damage was occasioned by fire. The position of the defendants insurance companies is that the credible evidence in the case clearly indicates that the cause of the breakdown was entirely electrical in origin and was not caused by fire.
Any decision that the fire preceded the electrical disturbance or that the electrical disturbance preceded and caused the fire would rest upon pure conjecture and I have, therefore, concluded that neither proposition has been established by a fair preponderance of the credible and acceptable evidence.
Each side has briefed the question here at issue upon an assumption that the determination of the question of fact would be in its favor and neither side has briefed the question to what happens in the event, as turns out to be the case, that the court cannot make an affirmative finding either way on the question as to which came first, the fire or the electrical disturbance, although finding as a fact that there was a fire in the elevator equipment.
Independent research, however, has caused the court to conclude that, based on the affirmative findings here made and its inability to make any findings as to precedence, plaintiffs have established their right to recover on the first cause of action against defendants insurance companies. By proving, through evidence accepted and credited by the court, that there was a fire and resulting damage, plaintiffs have brought themselves within the coverage of the policies which insured them 'against all direct loss by fire' to the premises. Thus in Agricultural Insurance Co. v. Rothblum, Inc., 147 Misc. 865, 265 N.Y.S. 7 the court held that the insured established a prima facie case by offering proof that the loss occurred within the terms of the policy coverage and was under no duty to offer proof to negate the possibility that the loss might have occurred in a manner described in the excepted clauses. The court said (p. 867, 265 N.Y.S. p. 9):
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